Andrew Cuomo is in serious trouble. Preet Bharara, the hard-charging
U.S. attorney for the Southern District of New York, has turned up the
heat on his administration's alleged interference with an
anti-corruption commission he appointed, and for the first time in the
New York governor's four-year tenure, he's lost control of a situation.
That's an awful feeling for any politician, but especially for one who
so prizes control, and who prides himself on playing political chess
while his opponents play checkers. It's the classic tale of a pol so
consumed with avoiding a short-term image hit that he risked his
long-term freedom. (I know the story well, because five years ago this
week I lost control of a similar situation and ended up in prison for
obstruction of justice.)

Smith recounts how two Cuomo aides - Larry Schwartz and Joseph Percoco - are reported to have helped Cuomo meddle with Moreland, looks closely at the law and what he knows can happen when federal prosecutors start to look into you and concludes:

U.S. attorneys don’t get together and swap stories about the time
they brought down a political staffer, and they don’t become U.S.
attorneys general that way, either. Make no mistake: Bharara wants Cuomo’s scalp,
and he has two people he can leverage to get it, if indeed the governor
blessed the original thwarting of subpoenas, the more recent pressure
on commissioners to make false statements backing up his denial of
interference, or both.

Unfortunately for Cuomo, some obstruction statutes treat
accomplices before the fact as principals, which means that he would be
liable for anything Schwartz or Percoco did, provided he had advance
knowledge. And given his legendary micromanagement – Cuomo is famous for producing groundswells of support at opportune junctures, whether on behalf of policy initiatives or his own career advancement – it’s hard to believe that he wasn’t at least aware of his aides’ actions. (As ex-governor David Paterson wryly observed amid
mounting pressure to abandon his re-election bid and make way for
then-Attorney General Cuomo, “Drumbeats remind me of orchestras, and
orchestras remind me of orchestration.”)

If a sole aide is
implicated in an effort to protect his boss, he’ll sometimes take the
fall by saying that he acted independently, hoping that his boss –
especially one about to easily re-elected to a powerful governorship –
will appreciate his extraordinary loyalty and remember him post-prison.
That option might be preferable to giving up one’s boss, an act that
makes a high-level political adviser essentially unemployable by other
politicians, lobbying firms and trade associations.

But if there’s a second aide who is implicated, and whose
proximity to the principal affords knowledge that the principal approved
– or even orchestrated – a cover-up, the calculation is very different.
The first aide is no longer simply weighing the benefits of cooperation
(a substantially reduced sentence) against the costs (the cognitive
dissonance of betrayal and future reputational damage); he is now
weighing the odds that the other aide might implicate him first,
rendering his own information nearly useless. That’s the crux of the
Prisoner’s Dilemma, and it’s why each player’s dominant strategy,
according to the game theorists who use it, is to snitch before the
other guy can.

Smith pushes back against some of the conventional wisdom that has made it into the papers, particularly in the Daily News from Bill Hammond, that Bharara has nothing on Cuomo legally:

Many, including New York Daily News columnist Bill Hammond, believe that
Cuomo will walk. Hammond – and some criminal defense attorneys who
agree with him – offer several reasons for this, most notably Bharara’s
limited federal jurisdiction over this state investigation of state
officers.

However, legal precedent that prosecutors need not prove that
an official federal proceeding was pending during the alleged offense,
nor must they prove that the offender is aware of an investigation’s
federal character. Indeed, according to holdings in New York’s own 2nd
Circuit and in the neighboring 3rd Circuit, a defendant’s belief that a
witness is reasonably likely to confer with federal authorities can be
inferred from the nature of the offense and additional appropriate
evidence; Bharara’s seizure of the Moreland Commission’s files,
unambiguous public announcement of his intent to investigate and serial
prosecutions of Albany legislators since taking his post would seem to
provide sufficient evidence. In simpler terms: Ignorance of an
investigation is no defense.

Hammond also seconds Cuomo’s argument that he can’t possibly interfere with his own commission, citing the
precedent of pre-Depression-era Gov. Al Smith, who twice appointed
himself the sole Moreland Commission member. But Smith did not deputize
34 commission members as deputy attorneys general with autonomous law
enforcement power, which seems to render the comparison moot.

By
Hammond’s account, prosecutors would be hard pressed to discredit
repeated public statements from commissioners who have denied any
improper interference or intimidation. Yet it would seem that a jury
might weigh other evidence of interference – documents and, potentially,
sworn statements buttressing that evidence – more heavily than public
pronouncements made only after pressure from Cuomo aide Percoco, who
even offered to draft the statements, according to multiple sources.
Lastly,
Hammond argues that the commission’s eventual pursuit of many inquiries
to which Cuomo objected indicates that any attempted Cuomo interference
was ultimately ineffectual. That’s not unlike arguing for a terrorist’s
innocence after the bombs he planted failed to detonate. The
commissioners’ apparent steadfastness absolves the Cuomo administration
of nothing.

As I wrote when
New Jersey Gov. Chris Christie’s George Washington Bridge fiasco broke,
federal prosecutors aren’t limited to investigating the matter that
first attracted them to a target; probes often widen as new information
emerges. Like wartime generals, federal prosecutors rarely have just one
attack route. Just as they brought down Al Capone for income-tax
evasion, not bribery, bootlegging or murder, they could end up indicting
Christie for any number of other imbroglios about
which troubling facts have emerged since the “Bridgegate” story broke.
As someone who did time after a five-year, off-and-on inquiry that began
with an examination into a 3x5 campaign postcard and ended in
obstruction-of-justice charges due to discoveries from an unrelated
investigation into a car bombing (!), I’m well-acquainted with the
unforeseen places to which these inquiries can lead.

Blake Zeff has a piece at Capital NY today that reports Bharara may have an easier time proving witness tampering after the fact by Cuomo aides than meddling with the commission's initial work to obstruct justice:

When it comes to the underlying allegation of meddling in the
investigations, the language in this statute does present jurisdictional
challenges for Bharara, though not necessarily the one that keeps
getting cited.

While pundits and legal observers have questioned
whether a federal prosecutor can look into a state entity like the
Moreland Commission, Bharara and others do this all the time. (If you
don’t believe me, ask incarcerated former state senator Vincent Leibell about the feds’ ability to look into Albany dealings).

Instead,
the key challenge for the federal prosecutor when it comes to the
accusation of interference into the Moreland leads is demonstrating that
the quashed subpoenas aimed at entities like Cuomo’s media buying
firm might have compromised federal investigations (or potential ones).

In
other words, were the firm Buying Time or the Cuomo support group
Committee to Save New York the subject of federal interest? This is not
impossible, but you can see why establishing the link presents a
high bar.

By contrast, the same statute is far more
straightforward when it comes to alleged efforts to influence the
statements of the commissioners. Consider that Bharara had already
made clear there was a federal investigation into Team Cuomo’s handling
of the Moreland Commission. By definition, that key jurisdictional
hurdle—whether a federal investigation was at stake—is cleared.

Days after the initial Times report, Fitzpatrick (whose wife is reportedly up for re-appointment for a judgeship next year by Cuomo if he wins) puts out a statement writing something quite different: “The bottom line is nobody ‘interfered’ with me or my co-chairs.”

Later that week, the Times Union reports
that “Joseph Percoco, a longtime political aide to Gov. Andrew Cuomo,
contacted several members of the state's now-shuttered anti-corruption
commission in the past week and encouraged them to make public
statements supporting the governor and affirming the panel's
independence.”

The story adds that prosecutors said they
“would be interested in interviewing any commissioners whose public
statements might be contradicted by commission records and
internal communications, according to information provided to the Times Union.”

It’s further reported by Ken Lovett of the Daily News
that Moreland co-chair Kathleen Rice and others who served on the
commission were “livid that the governor and his team last week
sought public statements of support from members of the now-defunct
panel, sources say.”

Lovett has a commission-linked source
accusing Fitzpatrick of “carrying water for the governor while
everyone else is being candid with the U.S. attorney and trying to help
protect the integrity of the investigation by not speaking out.”

He further reports that Rice and Milt Williams, the
commission’s third co-chair, were not pleased when Cuomo suggested they
agreed with Fitzpatrick’s statement attesting to the panel’s
independence.

While Cuomo told reporters, “I’m sure if they had
a different opinion you would have heard from them,” a
spokesman for Rice bluntly told Lovett: “It was not a joint statement.”

Another development may also matter to investigators in this context.

The panel’s investigations chief, Danya Perry, reported to have quit due to concerns about the governor’s office’s meddling, recently took a job with former top Cuomo aide Steve Cohen at MacAndrews & Forbes, Lovett reported.
While a trustworthy source who knows both Perry and Cohen emphasized
that both were high-integrity professionals, the person added that the
appearance and timing of the move would give prosecutors little
choice but to look into it.

Put all this together with the
likelihood that some members of the commission are talking to
prosecutors (and leaking to reporters), and starts to look like a
charge of trying to influence a witness in a federal proceeding would be
easier for Bharara to bring in connection with the commissioners'
statements than with the administration's dealings with the commission
itself.

The most important issue for me is whether Bharara would limit his investigation to Cuomo administration tampering during and after the Moreland Commission or whether he might pick up the strands of the Moreland Commission investigations into Cuomo donors that were short-circuited by Cuomo administration meddling.

A powerful federal prosecutor on Wednesday reiterated his pledge to
pick up where Gov. Andrew Cuomo's anti-corruption commission left off.

Late in the interview, Rose briefly asked Bharara about his previous criticism of Cuomo
for abruptly shutting down the Moreland Commission in March. Cuomo had
appointed the panel nine months earlier with a charge of investigating
public corruption in New York.

Bharara noted his office has
received the documents at the center of the various investigations that
were halted when Cuomo disbanded the commission.

“Our interest
above all other interests is to make sure that the job is getting done,
because we are the people who do our jobs," Bharara told Rose. "So we
asked for and received -- we were voluntarily offered -- all the
documents that have been collected by the commission so the work could
continue, because if other people aren’t going to do it, then we’re
going to do it. That’s our main mission."

"We have the documents and we have the resources and we have the
wherewithal and we have I think the kind of fearlessness and
independence that is required to do difficult public corruption cases.”

In addition, I have difficulty believing that somebody as politically astute as Bharara - he made his political bones working for Chuck Schumer - would go toe-to-toe with Andrew Cuomo in public, chastising him for shutting down the commission, warning him that coordinating statements from Moreland Commission members after the fact was potential witness tampering and obstruction, unless he really had something on Cuomo.

I dunno, I could be mistaken, but if after all the public wrangling between Bharara and Cuomo, if this all just ends up with a sternly-written report about executive meddling in commission work, Bharara's going to look like a chump and Cuomo will make sure the world knows it.

Much of the conventional wisdom around the case - that Cuomo's got no legal jeopardy to worry about because federal prosecutors will have a difficult time proving he broke federal laws and they have "limited federal jurisdiction over state investigations of state
officers" (as Jeff Smith put it) - is based on what is known about the Moreland matter that is in the public record.

It's what we don't know that Preet Bharara does know about Moreland that matters most here.

Has Bharara picked up the Moreland investigations into Cuomo donors that Cuomo administration officials put the kibbosh on?

Was Bharara investigating anything before Cuomo shut the commission down that linked to commission work?

What pressure is Bharara putting on Schwartz and Percoco?

What has he been told by Moreland Commissioners that hasn't made it into the public record yet?

While it's possible we have all the information about the Moreland mess, it's a lot more likely there's a lot we don't know about the Moreland matter, a lot we don't know that Bharara does know, and a lot that is happening behind the scenes that renders the speculation of journalists and defense attorneys based upon what is in the public record not much use.

OK, Gov. Perry's situation in Texas is not entirely identical to Gov. Cuomo's situation in New York, but it is close enough.From the Times story:"AUSTIN — Gov. Rick Perry of Texas was indicted on two felony counts on Friday by a state grand jury examining his handling of a local district attorney’s drunken driving arrest and the state financing for a public corruption unit under the lawyer’s control.

"The indictment was returned late Friday in Austin.

"The investigation centered on Mr. Perry’s veto power as governor. His critics asserted that he used that power as leverage to try to get an elected official and influential Democrat — Rosemary Lehmberg, the district attorney in Travis County — to step down after her arrest for drunken driving last year. Ms. Lehmberg is Austin’s top prosecutor and oversees a powerful public corruption unit that investigates state, local and federal officials; its work led to the 2005 indictment of a former Republican congressman, Tom DeLay on charges of violating campaign finance laws."